UM Grace Case

Backed by an array of colorful charts, lead defense attorney for W.R. Grace Co., David Bernick systematically worked to pick apart the government’s case.  Bernick’s closing argument Wednesday afternoon focused on what he insisted was the prosecution’s lack of credibility.

“The whole case, a politically driven case, is tainted,” Bernick said. “Has the government been credible in the prosecution of this case? No!”

Bernick’s direction was clear from the opening statement.

“I want to start out with one word: credibility,” Bernick said.

In front of a packed courtroom, Bernick argued for close to two hours, checking with Judge Donald Molloy repeatedly, as Molloy had initially limited Bernick to an hour and fifteen minutes.  Bernick portrayed the prosecution as a desperate group clinging to documents taken out of context and only using witnesses who were on their side.

While admitting that Libby residents have undergone incredible hardships, he said that is not what the case is about.

“The tragedy of Libby — Yes, people got sick.  No, that is not the charge,” Bernick said.

One charge after another was analyzed, scrutinized, and eventually declared false by Bernick in the “dark flower” that he used to symbolize the prosecution’s case.

Bernick spent a considerable amount of time looking at the conspiracy charge.

The charts accompanying Bernick gave the jury a visual of the charges, as well as aiding Bernick in laying out the perceived wrongs of the government’s case.

Titles of the charts ranged from “Government showed allegiance to Libby, not the law,” to “No good deed goes unpunished.”

“It’s not about if we have a document in our files.  There has to be an agreement.  It’s not enough to just meet and discuss business matters.  They must find a plan to commit a crime,” Bernick said.

The conspiracy charge, Bernick said, can only be proven with that complicit “agreement.”

“There is not a single person that has testified about an agreement to commit a crime,” Bernick said.  “There was a plan, but it was a business plan calling for compliance and cooperation (with new government guidelines).  Even Locke and Venuti (government witnesses) say the plan was to comply.  Without an agreement they got nothing.”

A conviction based on a knowing release and endangerment in this trial requires proof that a defendant knowingly committed a “heinous crime,” the release of asbestos, that would put people in imminent danger, Bernick said.

That danger has to be more likely than not — “a greater than 50 percent chance” — to cause death or serious bodily injury to a person exposed to the release.  Bernick said of 1,800 people from Libby that were tested, only 2 percent developed asbestosis and 18 percent had pleural diseases.

If the number did happen to exceed 50 percent, the defendant could only be found guilty if the release came after 1990 when the criminal provisions of the Clean Air Act were passed.

“They have to show that stuff went into the air (after that date).  It has to be a new release, and has to show the first release after 1999,” Bernick said.

Government witnesses were scrutinized by the defense through the trial and Bernick used that to attack the prosecution’s credibility.  He repeatedly brought up witness’ testimony detailing the conversations they had with the government prior to their day in court, trying to make a case that the government had improperly coached its witnesses.

Every time Bernick recalled these instances, he said the government had either not shown the witness the entire document, had only given experts figures from documents, and not the whole document, or the witness simply had no knowledge of the document in question.

“They turned their witnesses into puppets by giving them only particular documents to get to this dark flower,” Bernick said. “The government only used experts that were insiders they knew they could count on.”

Bernick ended by telling the jury it was especially important to establish that the judicial system works in this area of the country, where Grace’s reputation, he said, is not good.

He closed with a plea to the jury:

“Treat the company the same way you would perceive an individual.  My client is a company comprised of people.  If they are found guilty, there will be a penalty, and the company will be a convicted criminal. ”

–Josh Benham (posted at 4:55 P.M.)